ISSN No: 1323-6423
The Honourable Robert John Debus
Attorney General of New South Wales
Level 20, Goodsell Building
8-12 Chifley Square
SYDNEY NSW 2000
24 January 2001
In accordance with the provisions of Section 12A(4) of the Coroners Act 1980, I present a written report containing a summary of the details of the deaths of persons in circumstances referred to in Section 13A.
Under the provisions of Section 13A:
1 A Coroner who is the State Coroner or a Deputy State Coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the Coroner that the person has died or that there is reasonable cause to suspect that the person has died:
(a) while in the custody of a police officer or in other lawful custody, or while
escaping or attempting to escape from the custody of a police officer or other lawful
as a result of or in the course of police operations; or
while in, or temporarily absent from, a detention centre within the meaning of the
Children (Detention Centres) Act 1987, a prison within the meaning of the Prisons Act
1952, or a lock-up, and of which the person was an inmate; or
while proceeding to an institution referred to in paragraph (c) for the purpose of being admitted as an inmate of the institution and while in the company of a police officer or other official charged with the person’s care and custody.
2 If jurisdiction to hold an inquest arises under both this section and Section 13 (class of
Inquests into such deaths are mandatory and must be heard by the State Coroner, or a Deputy State Coroner. It is therefore part of the Coroners Act that deaths resulting from police operations, deaths in prisons, and deaths of persons proceeding to and from appropriate institutions are to be the subject of mandatory reporting and inquest, although in practice such was always the case.
78 cases in circumstances referred to in Section 13A were subject to investigation by the State Coroner and his Deputies in 2001 and are referred to in this report. Of those 78 cases, 41 were matters outstanding as at the 31 December 2000 and 37 were matters reported during 2001.
In 2001, 22 matters were completed by way of Inquest finding, including 3 that were terminated because of person/s being charged with an indictable offence in which an issue will be that the person charged caused the death. Of the outstanding matters, 24 cases have been listed for hearing in 2002 and 32 are currently under investigation with hearing dates yet to be allocated.
I hereby enclose my report for 2001 into deaths in custody/police operations deaths for your information and for the information of both Houses of Parliament.
J B Abernethy
NSW State Coroner STATUTORY APPOINTMENTS Under the 1993 amendments to the Coroners Act 1980, only the State Coroner or a Deputy State Coroner can preside at an inquest into a death in custody or a death in the course of police operations. The deaths, the subject of this report, were conducted before the following Coroners:
MAGISTRATE JOHN ABERNETHY
New South Wales State Coroner
1965 Joined the (then) Petty Sessions Branch of the New South Wales Department of the Attorney General and of Justice
1971 Appointed Coroner for the State of New South Wales
1975 Admitted as a Barrister-at-Law in the State of New South Wales
1984 Appointed a Stipendiary Magistrate for the State of New South Wales
1985 Appointed a Magistrate for the State of New South Wales under the Local Courts Act 1982
1994 Appointed New South Wales Deputy State Coroner
1996 Appointed New South Wales Senior Deputy State Coroner
2000 Appointed New South Wales State Coroner
MAGISTRATE JANET STEVENSON
Senior Deputy State Coroner 1990 Magistrate and Coroner
1997 Deputy State Coroner
2000 Senior Deputy State Coroner
MAGISTRATE JACQUELINE MILLEDGE
Deputy State Coroner 1996 Magistrate and Coroner
2000 Deputy State Coroner
Contents Introduction by the New South Wales State Coroner What is a death in custody?
What is a death as a result of or in the course of a police operation? Why is it desirable to hold inquests into deaths of persons in custody/police
New South Wales coronial protocol for deaths in custody/police operations
Contacts with outside agencies
Overview of deaths in custody/police operations reported
to the New South Wales State Coroner in 2001 Deaths in custody/police operations which occurred in 2001
Aboriginal deaths which occurred in 2001
Deaths investigated by the State/Deputy State Coroners during 2001
Information relating to the 37 deaths reported to the Coroner under section 13A
of the Coroner’s Act, 1980 and finalised in 2001
Unavoidable delays in hearing cases
Summaries of individual cases completed in 2001 Appendices Appendix 1 Summary of inquests heard or terminated in 2001
Appendix 2 Summary of other deaths in custody/police operations before the State Coroner in
2001 for which inquests are not yet completed
Introduction by the New South Wales State Coroner What is a death in custody? It was agreed by all mainland State and Territory governments in their responses to the Royal Commission into Aboriginal Deaths in Custody recommendations, that a definition of a death in custody should, at the least, include1:
1 the death wherever occurring of a person who is in prison custody or police custody or
detention as a juvenile;
2 the death, wherever occurring, of a person whose death is caused or contributed to
by traumatic injuries sustained, or by lack of proper care whilst in such custody or detention;
3 the death, wherever occurring, of a person who died or is fatally injured in the process of
police or prison officers attempting to detain that person; and
4 the death, wherever occurring, of a person who died or is fatally injured in the process of
that person escaping or attempting to escape from prison custody or police custody or
Section 13A of the Coroners Act expands on this definition to include circumstances where the death occurred:
1 while temporarily absent from a detention centre, a prison or a lock-up; as well as
2 while proceeding to a detention centre, a prison or a lock-up when in the company of a
police officer or other official charged with the person’s care or custody.
It is important to note that in respect of those cases where an inquest has yet to be heard and completed, no conclusion should be drawn that the death necessarily occurred in police custody or during the course of police operations. This is a matter for determination by the Coroner after all the evidence and submissions from those granted leave to appear have been presented at the inquest hearing.
What is a death as a result of or in the course of a police operation? A death as a result of or in the course of a police operation is not defined in the Act. Following the commencement of the 1993 amendments to the Coroners Act 1980, New South Wales State Coroners Circular No. 24 contained potential scenarios that are likely deaths ‘as a result or in the course of a police operation’ as referred to in Section 13A of the Act.
The circumstances of each death will be considered in reaching a decision whether Section 13A is applicable but potential scenarios set out in the Circular were:
any police operation calculated to apprehend a person(s);
any other circumstance considered applicable by the State Coroner or a Deputy State Coroner
The Deputy State Coroners and I have tended to interpret the subsection broadly. We have done this so that the adequacy and appropriateness of police response and police behaviour generally could be investigated where we believed this was necessary.
It is most important that all aspects of police conduct be reviewed even though in a particular case it may be unlikely that there will be grounds for criticism of police. It is important that the relatives of the deceased, the New South Wales Police Service and the public generally have the opportunity to become aware, as far as possible, of the circumstances surrounding the death.
In most cases where a death has occurred as a result of or in the course of a police operation, the behaviour and conduct of police was found not to warrant criticism by the Coroners. However criticism of certain aspects were made in the following matters:-
778/97 the Deputy State Coroner was critical of police response to the incident and made recommendations accordingly.
1751/00 the State Coroner expressed concern at the delay in deployment of specialist officers to a potentially life threatening situation. The State Coroner urged the NSW Police Service to analyse the facts of the case from an operational perspective and implement change where it is considered appropriate.
2028/00 the State Coroner stressed the need for the NSW Police Service to address the issue of immediately separating police when they are involved in a police operation or a death in custody so that their versions of the incident cannot be concocted.
In the following matters the actions of the police were commended:-
778/97 the Deputy State Coroner commended police for exercising exceptional judgments and showing a great deal of courage when dealing with a potentially life threatening situation.
182/01 the Senior Deputy State Coroner found that police acted professionally and appropriately.
191/01 the State Coroner commended the police officers for attempting to make the deceased safe. He found they nearly lost their lives in doing so.
We will continue to remind both the Police Service and the public of the high standard of investigation expected in all coronial cases.
Why is it desirable to hold inquests into deaths of persons in custody/police operations? I agree with the answer given to that question by Mr.Kevin Waller a former New South Wales State Coroner.
The answer must be that society, having effected the arrest and incarceration of persons who have seriously breached its laws, owes a duty to those persons, of ensuring that their punishment is restricted to this loss of liberty, and it is not exacerbated by ill-treatment or privation while awaiting trial or serving their sentences. The rationale is that by making mandatory a full and public inquiry into deaths in prisons and police cells the government provides a positive incentive to custodians to treat their prisoners in a humane fashion, and satisfies the community that deaths in such places are properly investigated2.
I agree also with Mr.Waller that:
In the public mind, a death in custody differs from other deaths in a number of significant ways. The first major difference is that when somebody dies in custody, the shift in responsibility moves away from the individual towards the institution. When the death is by deliberate self-harm, the responsibility is seen to rest largely with the institution. By contrast, a civilian death or even a suicide is largely viewed as an event pertaining to an individual. The focus there is far more upon the individual and that individual’s pre-morbid state. It is entirely proper that any death in custody, from whatever cause, must be meticulously examined3,
New South Wales coronial protocol for deaths in custody/police operations Immediately a death in custody/police operations occurs anywhere in New South Wales, the local police are to promptly contact and inform the duty operations inspector (the DOI) who is situated at VKG, the police communications centre in Sydney.
The DOI is required to immediately notify the Senior Deputy State Coroner (Westmead) if the death occurs within the jurisdiction of the Westmead Coroner’s Court which covers the western areas of metropolitan Sydney. The State Coroner or Deputy State Coroner must be notified of all deaths which do not fall within that area. These three Coroners are on call twenty-four hours a day, seven days a week. The Coroner so informed, and with jurisdiction, will assume responsibility for the investigations into that death. The Coroner’s supervisory role of the investigations is a critical part of any coronial inquiry.
The DOI is also required to immediately notify the Commander of the State Coroner’s Support Section, a small team of police officers who are directly responsible to the State Coroner for the performance of their duties.
Upon notification by the DOI, the State Coroner or Deputy State Coroner will give directions that experienced detectives from the Crime Scene Unit (officers of the Physical Evidence Section) and the local government medical officer or a forensic pathologist attend the scene of the death. The Coroner will check that arrangements have been made to notify the relatives and, if necessary, the deceased’s legal representatives. Wherever possible the body, if already declared deceased, remains in situ until the arrival of the Crime Scene Unit (officers of the Physical Evidence Section) and the local government medical officer or the forensic pathologist. A member of the Coroner’s Support Section must attend the scene that day if the death occurred within the Sydney Metropolitan area and, when practical, if a death has occurred in a country district. The Support Group Officer must also ensure that a thorough investigation is carried out. The Support Group Officer will continue to liaise with the Coroner and with the police investigators during the course of the investigation. In the course of the investigation the Coroner will, if necessary, direct investigators.
The Coroner, if warranted, should inspect the death scene shortly after death has occurred, or prior to the commencement of the inquest hearing, or during it. If the State Coroner or one of the Deputy State Coroners is unable to attend a death in custody/police operations occurring in a country area, the State Coroner will request the local Coroner in the particular district, and the local Government Medical Officer attend the scene.
A high standard of investigation is expected in all coronial cases. All investigations into a death in custody/police operations are approached on the basis that the death may be a homicide. Suicide is never presumed.
In cases involving the police When informed of a death involving the police service, as in the case of a death in police custody or a death in the course of police operations, the State Coroner or the Deputy State Coroners may request the Crown Solicitor of New South Wales to instruct independent Counsel to assist the Coroner with the investigations into the death. This course of action is considered necessary to ensure that justice is done and seen to be done.
In these situations Counsel (in consultation with the Coroner having jurisdiction) will give attention to the investigations being carried out, oversee the preparation of the brief of evidence, review the conduct of the investigation, confer with relatives of the deceased and witnesses and, in due course, appear at the mandatory inquest as Counsel assisting the Coroner. Counsel will ensure that all relevant evidence is brought to the attention of the Coroner and is appropriately tested so as to enable the Coroner to make a proper finding and appropriate recommendations.
Prior to the inquest hearing, conferences will often take place between the Coroner, Counsel assisting, legal representatives for any interested party, and relatives so as to ensure that all relevant issues have been addressed.
Apart from deaths in custody/police operations which occur in the Newcastle and Westmead Coronial districts (areas which are served by full-time pathologists), the remains of those who died in custody/police operations elsewhere in the State are transported by government contractor to the New South Wales Institute of Forensic Medicine at Glebe for post mortem examination by experienced forensic pathologists.
Responsibility of the coroner Section 22 of the Coroners Act provides:
the Coroner holding an inquest concerning the death of a person shall at its
conclusion record in writing his findings as to whether the person died and if so
identity of deceased
the date and place of death; and
the manner and cause of death,
Section 19 provides that:
if the Coroner is of the opinion that the evidence given at the inquest establishes a prima facie case against any known person for an indictable offence; and
the indictable offence is one in which the question whether the known person caused the death is in issue the Coroner must terminate the inquest.
The inquest is terminated after taking evidence to establish the death, the identification of the deceased, and the date and place of death. The Coroner then forwards to the Director of Public Prosecutions a transcript of the evidence given at the inquest together with a statement signed by the Coroner and specifying the name of the known person and the particulars of the offence.
An inquest is an inquiry by a public official into the circumstances of a particular death. Coroners are concerned not only with how the deceased died but also with why.
Deaths in custody are personal tragedies and have attracted much public attention in recent years. A Coroner inquiring into a death in custody is required to investigate not only the cause and circumstances of the death but also the quality of care, treatment and supervision of the deceased prior to death, and whether custodial officers observed all relevant policies and instructions (so far as regards a possible link with the death).
The role of the coronial inquiry has undergone an expansion in recent years. At one time its main task was to investigate whether a suicide might have been caused by ill-treatment or privation within the correctional centre. Now the Coroner will examine the system for improvements in management or physical surrounds which may reduce the risk of suicide in the future. In other words, the Coroner will critically examine each case with a view to identifying whether shortcomings exist and, if so, to ensuring, as far as possible, that remedial action is taken.
Recommendations The common law practice of Coroners (and their juries) adding riders to their verdicts has been given statutory authorisation in Section 22A of the Coroners (Amendment) Act 1993. This section indicates that public health and safety in particular are matters that should be the concern of a Coroner when making recommendations (S.22A(2)).
Any recommendations made following an inquest hearing should arise from the facts under inquiry and be designed to prevent, if possible, a recurrence of the circumstances of the death in question. Coroners require, in due course, a reply from the person or body to whom a recommendation is made.
Acknowledgment of the receipt of the recommendations made by a Coroner is received from Ministers of the Crown and other authorities promptly. Some weeks are required for the inquest evidence and exhibits to be studied and consideration given to the recommendations made by the Coroner. A formal reply as to the outcome of those considerations is then received by the Coroner. Recommendations were made arising from 14 inquests held during 2000.
Contacts with outside agencies During 2001 the State Coroner’s office maintained effective contact with the New South Wales Institute of Forensic Medicine (Department of Health), the Division of Analytical Laboratories at Lidcombe (Department of Health), the Aboriginal Prisoners and Family Support Committee (New South Wales Attorney General’s Department) the Aboriginal Deaths in Custody Watch Committee, the Indigenous Social Justice Association, the Aboriginal Corporation Legal Service, the Aboriginal and Torres Strait Islander Commission, the Australian Institute of Criminology in Canberra, the Office of the State Commander New South Wales Police Service, and the Department of Corrective Services. Close links were also maintained with Senior Coroners in all other states and territories.
Overview of deaths in custody/police operations reported to the New South Wales State Coroner during 2001 All deaths pursuant to Section 13A of the Coroners Act 1980, must be investigated by the State Coroner or a Deputy State Coroner.
Deaths in custody/police operations which occurred in 2001 There were 21 cases of deaths in custody and 16 cases of death as a result of or in the course of police operations reported to the State Coroner in 2001. These cases have either been listed for hearing in 2002 or are still under investigation.